Opinion
2012-02-9
Mahamadu TRAWALLY, et al., Plaintiffs, v. EAST CLARKE REALTY CORP., et al., Defendants.Mahamadu Trawally, et al., Plaintiffs–Appellants, v. Elliot Place Corp., et al., Defendants,41 Inc., et al., Defendants–Respondents.
Law Offices of Michael Stewart Frankel, New York (Richard H. Bliss of counsel), for appellants. Rosenbaum & Sanders, LLP, New York (Cory Rosenbaum of counsel), for respondents.
Law Offices of Michael Stewart Frankel, New York (Richard H. Bliss of counsel), for appellants. Rosenbaum & Sanders, LLP, New York (Cory Rosenbaum of counsel), for respondents.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered July 14, 2010, which, to the extent appealed from, upon a motion by defendants 41 Inc., Jacob Selechnik, and Ellen Selechnik (defendants) to vacate a prior order entered August 18, 2010 on default, vacated so much of the order as struck their answers on condition that, within 20 days of the date of the order, their attorney pay $2,500 to the Lawyers Fund for Client Protection, unanimously reversed, on the law, without costs, the motion denied, the prior order striking said defendants' answer reinstated,*852 and the matter remanded for further proceedings consistent with this order. Appeal from order, same court and Justice, entered October 27, 2010, which granted defendants' motion to deem the foregoing monetary sanction paid, nunc pro tunc, as of July 26, 2010, unanimously dismissed, without costs, as academic.
Defendants moved pursuant to CPLR 5015(a)(1) to vacate the order striking their answer. A party seeking such relief must establish a reasonable excuse for its underlying default as well as a meritorious defense ( see Ogen v. Nordstrom, 85 A.D.3d 552, 924 N.Y.S.2d 791 [2011] ). Defendants' purported showing of a meritorious defense was insufficient because it was based on the affirmation of an attorney who had no personal knowledge of the facts alleged ( see Thelen LLP v. Omni Contr. Co., Inc., 79 A.D.3d 605, 606, 914 N.Y.S.2d 119 [2010] lv. denied 17 N.Y.3d 713, 933 N.Y.S.2d 653, 957 N.E.2d 1157 [2011] ).